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Decision No. 245-AT-A-2010

June 14, 2010

June 11, 2010

APPLICATION by Margaret Tatlock against Air Canada.

File No. U3500/05-25

Background

[1] Ms. Tatlock has severe multiple chemical sensitivities (MCS) and uses medical oxygen prescribed by her physicians to remediate her reactions to irritants. On the advice of her physicians, she uses oxygen on a daily basis and she requires medical oxygen to travel by air. Ms. Tatlock informed Air Canada that she would need oxygen for a round-trip flight from Winnipeg to Halifax in 2005. Air Canada's Occupational Health Services determined that Air Canada's oxygen and oxygen delivery systems were neither appropriate nor required in Ms. Tatlock's case as they would not block any of the potential irritants described by her physicians and it refused to provide her with its oxygen service. As a result, Ms. Tatlock cancelled her reservation and travelled with WestJet which allowed her to use her own oxygen on board the flights.

[2] In Decision No. 604-AT-A-2006 dated October 31, 2006 (Decision), the Canadian Transportation Agency (Agency) made a preliminary finding that Air Canada's refusal to provide Ms. Tatlock with its onboard medical oxygen service constituted an undue obstacle to her mobility. The Agency provided Air Canada with an opportunity to address this preliminary finding and directed it to file specific evidence and related arguments to show cause why this obstacle was not undue. Ms. Tatlock was given an opportunity to reply to the evidence filed by Air Canada.

[3] Air Canada was directed to include in its response to the show cause order, expert medical evidence to substantiate its decision not to provide its onboard medical oxygen service on the basis that it is neither appropriate nor required to accommodate Ms. Tatlock's disability.

[4] Following the receipt of submissions from the parties in response to the Decision, the Agency informed the parties of changes in its analytical framework under Part V of the Canada Transportation Act, S.C., 1996, c. 10 (CTA) that resulted from the issuance of the March 23, 2007 judgement of the Supreme Court of Canada in respect of the matter Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SSC 15. The Agency provided Air Canada with an opportunity to submit further evidence as it deemed appropriate to meet its burden of proof.

[5] On June 3, 2008, the Agency advised the parties of its decision to retain an expert in MCS. On June 23, 2008, the Agency retained the services of Dr. John Molot to produce a report pertaining to MCS in the context of air travel. The Agency determined that the assistance of an MCS expert was essential to the Agency's understanding of the concerns involving MCS, such as the spectrum of reactions to irritants, consequences and how they are managed. On March 31, 2009, Dr. Molot submitted his report, Air Travel and Chemical Sensitivities. The parties were provided with a copy of the report in addition to an expert report produced by Dr. Gordon Sussman for the Agency's investigation of applications concerning air travel by persons with allergies, which the Agency considered might be of assistance in reviewing Ms. Tatlock's application.

[6] On April 24, 2009, the Agency asked Air Canada to file further information regarding the preliminary undue obstacle finding made in this case.

[7] In its response dated June 1, 2009, Air Canada submitted that passenger-supplied portable oxygen concentrators (POCs), devices that take oxygen from the air and concentrate it for a person's use, are the appropriate accommodation for Ms. Tatlock's disability and indicated that it allows POCs on all flights.

[8] The Agency required that Air Canada demonstrate why a POC is a more appropriate means of accommodating Ms. Tatlock's needs than its onboard Medipak oxygen service. Air Canada's response was filed on August 10, 2009, followed by Ms. Tatlock' reply on August 11, 2009.

Issue

[9] The issue in this show cause proceeding is whether Air Canada's refusal to provide Ms. Tatlock with its onboard medical oxygen service is an undue obstacle to her mobility.

Analysis and findings

[10] An application under section 172 of the CTA must be filed by a person with a disability or on behalf of a person with a disability. In this case, the Agency found in the Decision that Ms. Tatlock is a person with a disability for the purposes of Part V of the CTA.

[11] To determine whether there is an undue obstacle to the mobility of a person with a disability within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether that person's mobility is restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle is undue.

[12] The Agency found the existence of an obstacle based on the situation that existed at the time of the issuance of the Decision, as Ms. Tatlock did not receive the service she needed to meet her disability-related needs. More specifically, the Agency found that Air Canada's refusal to provide Ms. Tatlock with its onboard medical oxygen service to accommodate her disability, with the result that she cancelled her reservation and was unable to travel with Air Canada, constituted an obstacle to Ms. Tatlock's mobility. However, the situation has changed since the issuance of the Decision, as Air Canada now accepts the use of passenger-supplied POCs on board its aircraft cabins in addition to providing its Medipak service to passengers who require medical oxygen to travel by air.

[13] Although the Agency's investigation of complaints regarding accessible transportation examines the facts and circumstances at the time of the alleged obstacle, the Agency's examination is also prospective insofar as any corrective measures that may be ordered are designed to remove undue obstacles in respect of future travel. Therefore, the Agency finds it appropriate to examine what constitutes appropriate accommodation in terms of the services available today and not only those available when the Decision was issued.

Determination of appropriate accommodation

[14] The service responsive to a person's disability-related needs is referred to as "appropriate accommodation." However, this is not necessarily the accommodation that the individual may prefer. Moreover, sometimes the accommodation sought by an applicant is beyond the transportation service provider's duty to accommodate. In determining what constitutes the appropriate accommodation, the Agency's principal test is that of effectiveness.

[15] The service provider will meet its duty to accommodate if the accommodation provided results in an opportunity for the person with a disability to obtain the same level of transportation services and privileges experienced by others in the federal transportation network. In assessing whether the appropriate accommodation has been provided based on the facts of the case before it, the Agency does not consider the ability of the service provider to provide accommodation. Any constraints which may affect the service provider's ability to provide the service will only be assessed at the undueness stage, which only arises if the Agency finds that an individual encountered an obstacle. If it is determined that the individual was provided with appropriate accommodation, they cannot be said to have encountered an obstacle.

[16] Air Canada indicates that at the time that Ms. Tatlock filed her application, POCs were not an available alternative for the carrier. However, since 2008, Air Canada has been accepting passenger-supplied POCs. While Air Canada now provides two services to persons who require medical oxygen to travel by air, in the form of its onboard medical oxygen service (Medipak service) and allowing the use of passenger-owned POCs, it submits that the latter is the appropriate accommodation for Ms. Tatlock's disability, irrespective of whether the flight is domestic or international.

[17] Air Canada submits that Ms. Tatlock has a perfectly viable method of obtaining her desired supply of oxygen in the form of a personal POC, which she may acquire and modify as necessary. In addition, consistent with the Agency's opinion in Decision No. 336-AT-A-2008 dated June 26, 2008 (Oxygen Decision), Air Canada submits that if Ms. Tatlock uses her own oxygen equipment, she will be able to take her treatment in her own hands and should be able to "move through the transportation network with a sense of security drawn from the knowledge that [she does] not have to rely on a third party."

[18] Ms. Tatlock states that, regardless of the policy Air Canada may have recently adopted or been forced to adopt, the fact remains that she faced an undue obstacle in 2005 and has been denied transportation on Air Canada flights.

[19] Ms. Tatlock states that she has found oxygen delivered from a cylinder to be more helpful for her medical condition. She submits that POCs are expensive devices that not everyone can afford, nor would they necessarily want to own one for occasional air travel. Ms. Tatlock points out that she was not offered a POC when she travelled in 2005.

Air Canada's evidence

[20] Air Canada filed evidence from three medical doctors, as set out below.

Dr. Edward Bekeris

[21] Dr. Edward Bekeris, Head of Air Canada's Occupational Health Services, states that the Medipak service is not a replacement of the air that would otherwise be breathed in the passenger cabin; rather, the medical oxygen serves to enrich the ambient cabin air breathed by the passenger with supplemental oxygen. He explains that the cabin air usually contains 21 percent oxygen, and that the Medipak will be mixed with the ambient cabin air to produce enriched breathing air that contains approximately 26 percent oxygen. He adds that this applies whether cannula or traditional mouth and nose masks are used.

[22] Air Canada submits that its Medipak system does not filter the ambient cabin air containing the purported chemical irritants, which continues to be breathed by the passenger at a concentration of at least 70 percent. Air Canada submits that Dr. Carey Isaac, Ms. Tatlock's physician, provides no explanation as to how Air Canada's Medipak service would work to prevent Ms. Tatlock from being exposed to the chemicals in the cabin. Furthermore, Air Canada submits that Ms. Tatlock's doctor of osteopathy, Dr. Alfred R. Johnson, does not provide any explanation as to how continuing to breathe the same ambient air that would have caused a reaction, albeit at a very slightly reduced concentration, would be of assistance to remediate her reaction, which is his "theory" for Ms. Tatlock's use of oxygen.

[23] Ms. Tatlock points out that all Dr. Bekeris has to say is that the Medipak oxygen does not replace cabin air but enriches the oxygen contents from 21 percent to 26 percent. She states that this begs the question as to whether the increased oxygen concentration assists her, although Ms. Tatlock submits that it is unnecessary for Air Canada to fully understand what is essentially a private matter between a passenger and her physician.

Dr. James K. Stoller

[24] Air Canada filed an article from a medical publication called Up-to-Date, written by Dr. James K. Stoller. The article, Traveling with oxygen aboard commercial air carriers, addresses the effects of air travel with supplemental oxygen, individuals for whom supplemental oxygen is recommended, and preparations for air travel for such individuals. Ms. Tatlock submits that the article adds nothing to the matter, nor does it address the possible benefits of oxygen for someone like her. According to Ms. Tatlock, the fact that oxygen is the therapy of choice for many recognized lung conditions, as set out in the article, does not begin to address the possibility that oxygen is helpful or necessary for other conditions.

Dr. Raymond Kao

[25] Air Canada filed a report by Dr. Raymond Kao, Flight Surgeon of the London Health Sciences Centre. In his report dated January 16, 2007, Dr. Kao refers to a statement from the American College of Occupational and Environmental Medicine (ACOEM) that "No specific treatment methods have yet been scientifically proven to be effective for MCS." Dr. Kao states that oxygen therapy is necessary for the treatment of various clinical disorders, both respiratory and non-respiratory. However, he further states that there are no randomized studies, prospective studies or case reports on the benefit of oxygen therapy for MCS or for a physiological reaction related to MCS. Dr. Kao adds that in the event of an anaphylactic reaction to the "exposed chemicals" oxygen therapy is helpful for an immediate cardiac-pulmonary reaction in conjunction with other definitive treatment for anaphylaxis.

[26] With respect to air travel, Dr. Kao states that high altitude can induce significant hypoxemia and patients at risk are candidates for supplemental oxygen during flight.

[27] However, in conclusion, Dr. Kao states that he would utilize the ACOEM statement of diagnosis and treatment of MCS which includes the following:

"Irrespective of the scientific uncertainties regarding the diagnosis, etiology and management of MCS, the impact of these symptoms on the wellbeing, productivity and lifestyle of those affected can be dramatic. It is neither helpful nor appropriate to address the problem solely by hypotheses that emphasize malingering or a desire for compensation.

Controversies about specific theories of MCS, diagnostic approaches or treatment modalities should not preclude the compassionate care of patients presenting with complaints consistent with MCS.

Although specific diagnostic tests and treatments have not yet been demonstrated to be helpful, a general clinical approach useful in the management of other non-specific medical syndromes can be adopted pending further scientific findings. This approach emphasizes:

establishing a therapeutic alliance with a goal toward functional restoration;

performing a medical evaluation appropriate to the presenting complaints and physical findings; avoiding ineffective, costly, and potentially hazardous, unproven diagnostic tests or remedies that may increase a patient's distress or disease;

treating all diagnosable medical and psychological problems;

individualizing medical and behavioural coping strategies useful in managing symptoms and educating the patient about the current state of knowledge about MCS."

[28] Dr. Kao concludes that, based on the information available, Ms. Tatlock does not have documented pulmonary and/or non-pulmonary pathophysiology that would require the use of oxygen therapy in flight and that there is no scientific evidence recommending oxygen as a remedy to a reaction from MCS.

[29] Ms. Tatlock notes that Dr. Kao claims no credentials in the field of environmental medicine, nor has he met her, let alone treated her. Ms. Tatlock states that Dr. Kao discusses how oxygen is necessary or helpful for people with a variety of medical conditions and his conclusion is that Ms. Tatlock does not have a condition that would require oxygen therapy.

[30] Ms. Tatlock states that, while Dr. Kao and Air Canada may not understand the value of oxygen therapy for the treatment and management of MCS, there are experts who do.

[31] Ms. Tatlock states that the ACOEM's position paper on the diagnosis and treatment of MCS was last updated in 1999 and that, since then, many papers and studies have been published and many have accepted MCS as a valid diagnosis for all practical purposes. Ms. Tatlock further states that effective treatments for chemical sensitivity have existed for 25 years, whether the ACOEM accepts them or not.

[32] Ms. Tatlock submits that, regardless, the ACOEM advocates a "compassionate care" approach towards persons who have MCS, although it cautions against "potentially hazardous, unproven diagnostic tests or remedies." Ms. Tatlock submits that this may be good advice to physicians but it is not meant to supply Air Canada with a justification to overrule or second guess a passenger's qualified physician. She also submits that the fact that medical research is ongoing should not stop governments and others from doing the necessary, right, expedient thing. Ms. Tatlock states that her real life experience is that oxygen works for her, which is supported by her physicians who prescribe it.

[33] Ms. Tatlock adds that treating physicians alleviate suffering by whatever means appear to work and medical knowledge grows not only with controlled experiments but with the accumulation of anecdotal evidence from ordinary people. She submits that many treatments that are accepted as helpful have never been scientifically proved.

[34] Ms. Tatlock submits that a transportation service provider such as Air Canada should have more faith in its customers and their physicians and not "engage them in a pseudo-scientific debate as a condition to providing transportation."

Ms. Tatlock's evidence

Dr. William Rea

[35] Ms. Tatlock refers to Dr. William Rea as being an expert who understands the value of oxygen therapy for the treatment and management of MCS. Ms. Tatlock states that "he is the founder and director of the internationally known Environmental Health Center (EHC) in Dallas, Texas, where he and his colleagues have successfully treated thousands of environmentally and chemically sensitive patients over the last 25 years."

[36] Ms. Tatlock submitted the chapter on oxygen supplementation from Dr. Rea's book, Chemical Sensitivity (1992). Ms. Tatlock points out that, while it makes no mention of problems during flight, it explains in detail the beneficial metabolic changes when oxygen is used to alleviate exposures.

Evidence from Agency's experts on MCS and allergies

Dr. John Molot

[37] Dr. John Molot is a medical doctor with a speciality in family medicine. In addition to running his own private practice in environmental medicine, he is a staff physician and a medical-legal liaison officer at the Environmental Health Clinic, Women's College Hospital in Toronto which is affiliated with the University of Toronto. Dr. Molot sets out the following comments in his report concerning the use of medical oxygen by individual who have MCS:

Supplemental oxygen may ameliorate symptoms directly, and will also dilute and protect against airborne contaminants that exacerbate sensitivity reactions. Other passengers with consistent, ongoing oxygen needs (e.g. passengers with chronic obstructive pulmonary disease) have obvious, known requirements and will necessarily pre-arrange their oxygen, but passengers with environmental sensitivities have less predictable needs that are dependent upon their fellow travellers as well as properties of the air handling system in the aircraft. While some passengers with sensitivities may anticipate their needs, others will encounter unanticipated needs both to avoid air contamination and for supplemental oxygen during the flight.

There is empirical evidence that oxygen can reduce the severity and duration of sensitivity reactions. Dr. Rea noted that vascular spasm may result from exposure to pollutants with resultant tissue hypoxia; "Oxygen from 40% to 100% may be provided via nasal cannula (3L/min) or ceramic mask (6-10 L/min) for as long as the reaction lasts (up to 24 hrs, as longer could lead to lung damage)."

Provision of additional oxygen will also dilute inhaled cabin air and protect against airborne contamination that exacerbate sensitivity reactions.

Moreover, with respect to using supplemental oxygen as a means of mitigating or preventing symptoms of MCS, Dr. Molot states that "supplemental oxygen may ameliorate symptoms directly, and will also dilute and protect against airborne contaminants that exacerbate sensitivity reactions."

Dr. Gordon Sussman

[38] Dr. Gordon Sussman was hired as an expert in the Agency's investigation into air travel for persons with allergies. Air Canada submits that Dr. Sussman's statement that the "literature does not support the use of masks to avoid the possible inhalation of airborne foods" confirms that the accommodation sought by Ms. Tatlock is neither effective nor indicated, be it as a method of avoidance of the airborne chemicals to which she may have sensitivities or as a remedy should she have a reaction thereto.

[39] Ms. Tatlock contests the relevance of Air Canada's reference as Dr. Sussman's statement was made in the context of what appears to be a concern mostly with the extreme anaphylactic reactions experienced by persons who have peanut and other food allergies. Ms. Tatlock submits that Air Canada's statement that MCS are akin to allergies is "a sweeping statement unsupported by authority and of no real importance in this context." Ms. Tatlock points out that Dr. Sussman was not asked, and did not comment, on the usefulness of masks and/or oxygen for people with MCS, and submits that his comments cannot be extrapolated to any useful degree. Ms. Tatlock suggests that "this out-of-context statement" should not displace the opinion of Ms. Tatlock's physician who prescribed the medical oxygen.

Analysis and findings on appropriate accommodation

Air Canada's Medipak oxygen service

[40] As reflected in the Decision, Air Canada refused to provide Ms. Tatlock with its medical oxygen service based on the determination by Air Canada's Occupational Health Services that oxygen and the type of delivery system used made it such that it was neither required nor appropriate for her condition. The Agency considered the evidence in this regard and was of the opinion that Ms. Tatlock had clearly described the potentially significant physical impact on her when she is unable to obtain onboard medical oxygen and had provided medical evidence supporting the need for onboard medical oxygen as an accommodation to mitigate the symptoms associated with her environmental sensitivities.

[41] In response to the show cause order, Air Canada filed further evidence in support of its position that its Medipak service is neither required nor appropriate for Ms. Tatlock's condition.

[42] Dr. Bekeris, Head of Air Canada's Occupational Health Services, states that the carrier's Medipaks provide a 5 percent increase in oxygen intake. Air Canada filed a report from Dr. Kao, Flight Surgeon of the London Health Sciences Centre, who concludes that Ms. Tatlock does not have a condition known to require the use of oxygen therapy in flight. The Agency is of the opinion that this additional information, as well as the article by Dr. Stoller, is not persuasive with respect to Air Canada's position that Ms. Tatlock should not use or does not require Air Canada's Medipak service to address her MCS.

[43] While Dr. Kao further states that there are no randomized studies, prospective studies and/or case reports on the benefit of oxygen therapy to address MCS or a physiological reaction to MCS, the Agency accepts the opinion of Dr. Molot that oxygen therapy and supplemental oxygen can be an effective method of reducing the severity and duration of sensitivity reactions and diluting inhaled cabin air and will also dilute and protect against airborne contaminants that exacerbate sensitivity reactions.

[44] Dr. Bekeris states that the Medipak service does not filter the ambient cabin air containing the purported chemical irritants, which continues to be breathed by the passenger at a concentration of at least 70 percent. As reflected in the Decision, Air Canada uses cleaning products daily on each aircraft and on a full aircraft, many passengers could be wearing perfume, aftershave, personal care products or could have tobacco smoke residue. Ms. Tatlock, nonetheless, was able to complete her travel in the past using Air Canada's medical oxygen service. Therefore, the Agency accepts that medical oxygen, which is prescribed by her physicians for use on a daily basis and to travel by air, provides the remedial treatment required for Ms. Tatlock's MCS.

[45] The Agency finds that Air Canada has not submitted supporting evidence, medical or otherwise, to substantiate its position that medical oxygen is neither appropriate nor required to accommodate Ms. Tatlock's disability. Ms. Tatlock filed evidence supporting her need for in-flight medical oxygen to meet her disability-related needs, which is prescribed by her physician. The Agency notes that the latter is consistent with Dr. Molot's view that supplemental oxygen may improve symptoms and will dilute and protect against airborne contaminants that exacerbate sensitivity reactions.

POCs

[46] Ms. Tatlock finds oxygen delivered from a cylinder to be more helpful for her condition. She submits that there are differences between the oxygen and air that a POC delivers and that which is delivered from an oxygen cylinder. She states that it should not be assumed, without evidence, that the two delivery methods serve the same purpose. Ms. Tatlock's counsel submits that physicians have never recommended that Ms. Tatlock use a POC, "perhaps because they recognize that she is also sensitive to electrical circuitry and she minimizes her use of electric or electronic equipment." Ms. Tatlock's counsel argues that many people with environmental sensitivities also experience electromagnetic sensitivity and notes that POCs are electrical devices, while oxygen cylinders are not. In addition, Ms. Tatlock's counsel states that POCs are expensive devices that not every person can afford, nor would they necessarily want to own one for the occasional flights that they may take.

[47] Dr. Molot notes in his report that sensitivity to electromagnetic phenomena is a subcategory of environmental sensitivities. Dr. Molot also notes that some aspects of the physical environment, including electromagnetic radiation, currents and fields, may exacerbate environmental sensitivities. However, Dr. Molot states that if a passenger has mild to moderate MCS and the benefits of travelling by air appear to outweigh the risks, it may be an important precaution to bring the passenger's own, or rented, oxygen cylinder.

[48] The Agency is of the opinion that the comments by Ms. Tatlock's counsel with respect to sensitivity to electrical circuitry and POCs are speculative and general in nature and, as such, are insufficient to demonstrate that Ms. Tatlock is unable to use a POC.

[49] With respect to the concerns raised by Ms. Tatlock's counsel regarding the cost of POCs, the Agency finds in this case, as set out below, that Air Canada has not demonstrated that Ms. Tatlock's use of a POC is less costly or less disruptive to Air Canada than the provision of its Medipak service. Accordingly, Ms. Tatlock should be entitled, on the terms set out below, to choose the means of available appropriate accommodation she prefers. Moreover, the views expressed by Ms. Tatlock's counsel are not specific to her ability to afford the cost of a POC. In light of the foregoing, it is not necessary for the Agency to address the cost-related concerns raised by Ms. Tatlock's counsel regarding POCs.

[50] The Agency notes that Ms. Tatlock did not substantiate her view that oxygen delivered from a cylinder is more helpful for her condition.

[51] In light of the above, the Agency finds that supplemental oxygen from both cylinders and POCs will meet Ms. Tatlock's disability-related needs.

Multiple means of appropriate accommodation

[52] In some situations, such as this case, a variety of accommodation measures may meet a person's disability-related needs. The appropriate accommodation measure need not be the most expensive, nor must it be exactly what the individual requests, but it must be effective. While an individual's preference should be considered, one cannot insist on his or her own preferred form of accommodation in the face of a reasonable alternative which is less costly, disruptive or burdensome to the respondent transportation service provider. Therefore, the Agency recognizes that respondent transportation service providers should be entitled to choose the means of appropriate accommodation that is less costly, disruptive or burdensome when it is equally responsive to the disability-related needs of a person.

[53] However, in situations where different means of appropriate accommodation are equally responsive to a person's disability-related needs and no one means of accommodation is either less costly, disruptive or burdensome for the respondent transportation service provider to provide, the Agency is of the opinion that the person with a disability should be entitled to choose the means of accommodation he or she prefers.

[54] Air Canada allows passengers who require medical oxygen to travel by air to use its Medipak gaseous oxygen cylinders and/or passenger-supplied POCs. Both means of oxygen supply are responsive to Ms. Tatlock's needs, yet Air Canada would deny her one of these, being gaseous oxygen, which it currently allows through its Medipak service.

[55] Air Canada must, therefore, demonstrate that Ms. Tatlock's use of a POC is less costly, disruptive or burdensome for it than the provision of its Medipak service.

Positions of the parties

[56] As the option to travel with a POC was not available prior to February 1, 2008, Air Canada points out that, in light of the difficulty arising from the fact that its Medipak service involves delivery by a cannula, which Ms. Tatlock does not favour, she proposed "make-shift" arrangements to the Medipak service. Air Canada notes that until 2001, Ms. Tatlock travelled with scissors and would cut the tube from the nose cannula to connect to her own ceramic mask. Air Canada further notes that as Ms. Tatlock is no longer able to bring scissors on board due to security restrictions, she proposes that Air Canada send her the cannula and tubing ahead of time to make this adjustment. Air Canada submits that, while it might be ideal, in Ms. Tatlock's view, to require it to do so, the proposal by Ms. Tatlock would impose an additional burden on Air Canada without a corresponding advantage for Ms. Tatlock.

[57] Dr. Molot, the expert on MCS hired by the Agency, sets out the following comments in his report concerning medical oxygen as it relates to the use of cannulas and masks:

Oxygen can be delivered by cannula or simple face mask, made of plastic, silicon or rubber, all of which may off-gas, so the oxygen delivery method should be according to passenger preference. Ceramic or porcelain masks are much more fragile, but do not off-gas. Nasal cannulas are often the most comfortable and the oxygen flow should be 3 to 5 L/min.

Masks may offer more protection, particularly for those who tend to breathe through their mouths. The flow must be at least 5 L/min through a mask to prevent accumulation of carbon dioxide. A good fit is harder to attain with a ceramic or porcelain mask, necessitating an ox flow rate of 6 L/min to 10L/min to ensure adequate oxygen concentration.

[58] Ms. Tatlock indicates that she had not initially requested a service of Air Canada as she was willing to supply her own oxygen cylinder. She states that when Air Canada insisted that it had to supply her with the oxygen, this created a further complication in that she would have to adapt the nasal cannula and tubing of Air Canada's oxygen cylinders to fit her own mask. Following that, Air Canada refused to allow her medical oxygen, which is the subject of this complaint.

[59] While Ms. Tatlock had been able to make modifications to the nasal cannula and tubing in the past to accommodate her ceramic mask, she also indicates, as set out in the Decision, that she has used a cotton facemask to cover the oxygen tubing, her nose and mouth thereby negating the need for these modifications. Therefore, the Agency finds that Ms. Tatlock is able to use the nasal cannula and tubing supplied by Air Canada without the need for Air Canada to make special arrangements.

[60] The Agency therefore finds that providing the standard Medipak service for Ms. Tatlock, where available, would not impose an additional burden on Air Canada.

[61] Air Canada refers to the Agency's determination of most appropriate accommodation in the Oxygen Decision, wherein the Agency found that it is reasonable for carriers to adopt an oxygen policy that is consistent for all international destinations and that adopts the most stringent regulations. In this case, the regulators are those of the United States which permit the use of passenger-supplied POCs on international flights and prohibit the use of passenger-supplied gaseous oxygen. Air Canada points out that, in defining most appropriate accommodation, the Agency considered the multiple inconveniences that having more than one oxygen policy would cause. Air Canada suggests that carriers should not be required to design programs to address all of the different scenarios that may arise in international travel and that a similar analysis should lead to the conclusion that a carrier should not be required to make individual modifications to its oxygen delivery procedures to accommodate "the idiosyncrasies of individual users."

[62] Air Canada states that Ms. Tatlock's particular requirements are very unusual and it knows of no other passenger who has made a similar request. It adds that "the implications of requiring Air Canada to accommodate these particular requirements go beyond the individual case."

[63] With respect to Air Canada's statements that it should not be obliged to cater to idiosyncrasies, Ms. Tatlock points out that Air Canada is a company whose business is serving people and whose legal obligation is to accommodate persons with disabilities. Ms. Tatlock submits that as she was willing to pay for the service, Air Canada's accommodation of her idiosyncrasies was something for which it could recover the cost, and even profit from.

[64] The Agency finds that Air Canada has not demonstrated that Ms. Tatlock's use of a POC is less costly or less disruptive to Air Canada than the provision of its Medipak service. Ms. Tatlock should therefore be entitled to choose the means of available appropriate accommodation she prefers.

Conclusion on appropriate accommodation

[65] In light of the above, the Agency finds that Ms. Tatlock's requirement for medical oxygen to travel by air can be met by using either a gaseous oxygen cylinder or a POC. The Agency, therefore, finds that both means of receiving medical oxygen, including when the oxygen is delivered through a nasal cannula, constitute appropriate accommodation to meet Ms. Tatlock's disability-related needs.

The Agency's approach to the determination of the undueness of obstacles

[66] Air Canada has agreed to allow Ms. Tatlock to use a POC on its flights. The Agency's undueness analysis will therefore be limited to Air Canada's continued refusal to provide Ms. Tatlock with its Medipak service which, in the Decision, the Agency found to constitute an obstacle to her mobility.

[67] Once the applicant has established the existence of an obstacle to the mobility of a person with a disability in the federal transportation network, the burden of proof then shifts to the respondent transportation service provider to prove, on a balance of probabilities, that the obstacle is not undue. To this end, the respondent must demonstrate that it meets the following three-part test:

the source of the obstacle is rationally connected to a legitimate objective, such as those objectives found in the national transportation policy contained in section 5 of the CTA;

the source of the obstacle was adopted by the transportation service provider with an honest and good faith belief that it was necessary to the fulfillment of that legitimate objective; and

the source of the obstacle is reasonably necessary for the accomplishment of its objective, such that it is impossible for the transportation service provider to accommodate the person with a disability without imposing undue hardship on the service provider.

[68] The transportation service provider must show that reasonable accommodation has been provided. What constitutes reasonable accommodation in each case is a matter of degree and depends on a balancing of the interests of persons with disabilities with those of the transportation service provider in the circumstances of the case.

[69] Reasonable accommodation will be the accommodation that respects the dignity of the individual, meets individual needs, and promotes the independence, integration and full participation of persons with disabilities within the federal transportation network, while not causing undue hardship to the transportation service provider.

[70] In order to establish undue hardship, a transportation service provider must show that it has considered and determined that there are no reasonable alternatives to better accommodate the person with a disability affected by the obstacle and that there are constraints that make the removal of the obstacle unreasonable, impracticable or impossible.

[71] A balance has to be struck between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concepts of undueness and undue hardship.

This case

[72] Air Canada, in response to the Decision, in addition to the opportunity to file further arguments following the Supreme Court of Canada ruling, did not file any additional evidence in terms of constraints resulting in undue hardship with respect to providing its Medipak service to Ms. Tatlock with the exception of its argument regarding the additional burden that would be placed on Air Canada if it was required to send Ms. Tatlock the cannula and tubing ahead of time to make adjustment. The Agency has found that this is not required as Ms. Tatlock is able to use a cotton facemask, thereby negating the need for modifications.

[73] In the Decision, the Agency considered and discounted the following constraints raised by Air Canada.

[74] Air Canada raised concerns with respect to the risks associated with the carriage of compressed cylinders as well as the risks and impacts on other passengers, the carrier and the environment in the event of an emergency landing. As set out in the Decision, the Agency is of the opinion that Air Canada is able to handle compressed oxygen safely as it carries it on a regular basis.

[75] With respect to the concerns raised by Air Canada regarding the possible risk of an emergency landing if it provided its medical oxygen service to Ms. Tatlock, the Agency found that Air Canada did not demonstrate that it would be reasonably foreseeable that providing its medical oxygen service to Ms. Tatlock could have placed the carrier in a situation that might have required an emergency landing, in particular, as the uncontroverted filed evidence indicates that Ms. Tatlock has travelled without incident, with the use of oxygen, for more than 10 years, including twice with Air Canada.

[76] In response to the show cause, Air Canada did not provide additional evidence to demonstrate that it would be an undue hardship to provide the portion of the appropriate accommodation as it relates to allowing Ms. Tatlock to use its Medipak service.

[77] The Agency required Air Canada to show cause why its refusal to provide Ms. Tatlock with its onboard medical oxygen service did not constitute an undue obstacle to her mobility. In light of the above, the Agency finds that Air Canada has failed to do so.

Compensation

[78] Pursuant to subsection 172(3) of the CTA, the Agency may, on determining that there is an undue obstacle to the mobility of a person with a disability, direct that compensation be paid for any expense incurred by the person arising out of the undue obstacle. In this case, as reflected in the Decision, Ms. Tatlock requested a refund for her WestJet ticket, also noting that Air Canada would be free to debit her Aeroplan account for the points that were redeemed for the ticket she did not ultimately use. The Agency also noted that Air Canada requested that the ticket and itinerary be produced. Ms. Tatlock agreed to produce a copy of the ticket if further proof is deemed necessary.

[79] In its February 27, 2007 submission, Air Canada states that the ticket it issued to Ms. Tatlock was obtained using Aeroplan frequent flyer miles belonging to George Tatlock and that when Ms. Tatlock cancelled her booking, the Aeroplan miles were credited back to his account and taxes were refunded. Moreover, Air Canada points out that had the oxygen been provided by Air Canada, it would have cost Ms. Tatlock $150 each way.

[80] Air Canada, therefore, submits that the WestJet ticket is not an additional expense; rather, it is a replacement of the Air Canada ticket that was refunded to the original payer. Consequently, to request a refund of this ticket is akin to providing free transportation to Ms. Tatlock, which Air Canada submits is not the purpose of subsection 172(3) of the CTA.

Analysis and finding

[81] As the Aeroplan miles were returned for the unused ticket, no further corrective measure in this regard is required.

Conclusion

[82] As the Agency has determined that Air Canada's refusal to provide Ms. Tatlock with its onboard medical oxygen service constitutes an undue obstacle to her mobility, Air Canada is required to allow her to use onboard medical oxygen delivered by whatever means is available, and chosen by Ms. Tatlock. Air Canada is not, however, required to make any special arrangements regarding its Medipak service, such as providing Ms. Tatlock with the cannula and tubing in advance of her flight in order that she can fit them to her ceramic mask.